Opinion
No. 4-240 / 03-1598
May 26, 2004.
Appeal from the Iowa District Court for Clarke County, Artis Reis, Judge.
Father appeals and mother cross-appeals from a district court modification decree. AFFIRMED IN PART AND REVERSED IN PART.
Catherine Dietz-Kilen of Harrison Dietz-Kilen, Des Moines, for appellant.
Bernard Spaeth, Jr. of Whitfield Eddy, P.L.C., Des Moines, for appellee.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
James Jamison appeals and Mellony Jamison cross-appeals from the decree that modified portions of the parenting schedule established in the parties' dissolution decree and awarded Mellony attorney fees, but declined to modify the initial decree's child support provisions. We reverse the portions of the modification decree that altered the parties' parenting schedule. The remainder of the modification decree is affirmed.
I. Background Facts and Proceedings.
The marriage of James and Mellony Jamison was dissolved on April 6, 2000, pursuant to a stipulation between the parties. James and Mellony agreed to both joint legal custody and shared physical care of their three children, Janelle, born in 1987, Jeffrey, born in 1991, and Jared, born in 1995. The stipulation included the following provisions:
(a) During the school year the children shall ride the school bus to James' home at the end of each school day. Mellony shall have the children on Monday, Tuesday and Wednesday evenings from 6:15 p.m. to the following day when they shall go to school. James shall have the children with him from Thursday 8:00 a.m. until Sunday at 6:15 p.m. one week and Thursday 8:00 a.m. until Sunday at 9:30 a.m. the following week. The conclusion of James' time shall alternate thereafter.
(b) The parties shall equally divide the physical care time with the children during the Summer months when school is not in session.
This provision was later amended to provide a specific visitation schedule. Each party was granted physical care of the children two days each week, and on alternating three day weekends.
. . .
(l) In the event James is scheduled to have the children on a school night, but is unable to care for them due to his employment and if James is not remarried, then Mellony shall have the option of taking the physical care of the children when James is not available.
The stipulation provided that James would pay Mellony child support in the amount of $365 per month, "based upon the parties' net monthly incomes and in consideration of the other financial responsibilities set forth in this decree." The record indicates $365 is the support obligation James, as the non-custodial parent, would owe for three children under the 1999 Child Support Guidelines. The stipulation did not contain a corresponding child support obligation for Mellony.
In July 2002 James filed a petition to modify the dissolution decree. He requested the district court modify his child support obligation, contending application of the current Child Support Guidelines would result in a support obligation that deviated more than ten percent from the present obligation. He also requested that he be given the option to care for the children, on days when the children were in Mellony's care but were not in school, provided that neither Mellony nor any new spouse was able to stay home with them.
Mellony filed a counterclaim, alleging a substantial change in circumstances warranted an increase in James's support obligation. Mellony also asked the court to alter the parenting schedule to allow her to have time with the children on the weekends. She further requested that the court eliminate the provision in paragraph (a) of the schedule that required the children to ride the bus after school each day to James's home, contending it placed too great a burden on herself and the children. Finally, Mellony requested the court eliminate the language "if James is not remarried," from paragraph (l), asserting it was simply not an appropriate basis on which to deny her care of the children.
In its September 2003 ruling, the district court denied the requests to alter child support after determining that there had not been a substantial change in circumstances. The court apparently concluded it should not apply the ten percent deviation rule, as the award under the initial decree itself clearly deviated from the child support guidelines, and no reasons for the deviation were stated in the decree. The court did, however, amend the decree to require the parties to share equally in certain expenses.
Mellony had also requested the court amend the stipulated decree so that, rather than the parties splitting the tax exemptions for the children, she would receive the tax exemptions for all three children each year. The court also denied this request.
Although the court concluded that each party should pay for the expenses of the children when the children were in that party's care, the court ordered James and Mellony to share equally in the children's school registration fees, the cost of their school lunches and supplies, their car insurance premiums, and their church and sport camp expenses. This amendment to the decree is not challenged on appeal.
The court also amended some provisions in the parties' parenting schedule. The court concluded a substantial change in circumstances had occurred because "the children spend too much time traveling." It accordingly eliminated the provision that the children travel by bus to James's home after school each day. It also altered the schedule to provide what it determined to be a "more workable" schedule, one that allowed Mellony to spend time with the children on weekends. The court also deleted paragraph (l) in its entirety, concluding "[s]uch a provision simply does not work." Finally, the court ordered James to pay $2,000 towards Mellony's attorney fees.
The court awarded each parent care of the children two days per week, and on alternating weekends.
James appeals. He argues a substantial change in circumstances warrants elimination of his support obligation. He further contends no substantial change in circumstances exists to support the district court's modification of the parties' parenting schedule. Finally, James challenges the court's attorney fee award. Mellony cross-appeals. She contends the district court correctly ruled there was no change in circumstances justifying a modification of child support. She argues that if a modification is warranted, the change in the parties' respective incomes should result in an increase in James's child support obligation. Mellony request that we uphold the district court's decision to award her trial attorney fees, and asks that we increase the amount of the award. She also seeks appellate attorney fees.
II. Scope of Review.
Our review is de novo. Iowa R. App. P. 6.4. We give weight to the fact findings of the district court, especially in determining witness credibility, but are not bound by them. Iowa R. App. P. 6.14(6)( g). Our overriding consideration is the children's best interests. Iowa R. App. P. 6.14(6)( o).
III. Discussion.
A party seeking modification of a dissolution decree must establish, by a preponderance of the evidence, that a substantial change in circumstances has occurred since entry of the decree, and that the change was not within the contemplation of the district court when the prior decree was entered. See In re Marriage of Maher, 596 N.W.2d 561, 564-65 (Iowa 1999). Dissolution decrees are entered with an eye to ordinary and reasonable changes, and natural occurrences which could be foreseen by the court are not sufficient to justify modification. In re Marriage of Chmelicek, 480 N.W.2d 571, 574 (Iowa Ct. App. 1991). In addition, the change must be more or less permanent, and relate to the children's welfare. In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct. App. 1998).
A. Child Support.
As the party seeking a change in the amount of child support, James bears the burden of establishing a change in circumstances that warrants the elimination of his support obligation. Chmelicek, 480 N.W.2d at 574. In support of his argument that a substantial change has occurred, James relies on Iowa Code section 598.21(9) (2001), which states, "[A] substantial change of circumstances exists when the court order for child support varies by ten percent or more from the amount which would be due pursuant to the most current child support guidelines. . . ." If this court were guided solely by the amount of support due under the current child support guidelines, James's case would be easily made. When each parent's respective child support obligation is calculated under the current guidelines, and set off one against the other, James's obligation is largely reduced if not eliminated. See In re Marriage of Will, 489 N.W.2d 394, 400 (Iowa 1992) (requiring in cases of split physical care that each parent's support obligation be calculated under the guidelines, then set off).
Because no specific income determination was made by the district court, we look to the range of incomes supported by the evidence.
However, like the district court, we decline to apply section 598.21(9) mechanically, without reference to the underlying facts of this case. We too find it significant that James's current child support obligation deviated substantially from the guidelines in effect at the time the initial decree was entered. Even though an application of the 1999 guidelines would have resulted in a net obligation in Mellony of approximately $100, James and Mellony voluntarily agreed to a $365 monthly child support obligation for James, "in consideration of the other financial responsibilities set forth in" the stipulated decree. The parties' stipulation also states, "We have thoroughly considered the financial consequences of this Stipulation and agree that it is fair and reasonable."
James does not argue that a deviation of at least ten percent occurred because of a change in circumstances, such as a significant change in a party's income or a change in the number of children eligible for support. In fact, offsetting the parties' obligations under the current guidelines would actually result in a lower net obligation in Mellony than that which could have been ordered in 1999. Rather, James is effectively asserting that, by waiving Mellony's support obligation at the time the initial decree was entered, he struck a bad, inequitable or invalid bargain.
The record indicates James's income has increased, and that he is capable of meeting the current obligation. See Iowa Code § 598.21(8)(a).
Our concern is not whether the parties' decision to waive Mellony's child support obligation was wise, or even equitable. See Chmelicek, 480 N.W.2d at 574 (providing that a court may not modify a child support provision simply because it was originally inequitable). Our concern is with the children's best interest. Iowa R. App. P. 14(6)( o). Looking to the record, it appears that since the decree was entered Mellony has born a greater share of the children's expenses than James. Thus, the parties' decision to waive Mellony's support obligation has benefited, rather than injured, the children's best interests. See Webb v. Iowa Dist. Court, 416 N.W.2d 95, 98 (Iowa Ct. App. 1987).
Despite the language of section 598.21(9), we do not believe the legislature intended to allow a party to agree to a substantial deviation from the guidelines, then later rely on that deviation to modify the level of child support negotiated. Accordingly, we concur in the district court's conclusion that James failed to establish a substantial change in circumstances, and affirm the court's decision to deny James's request to eliminate his child support obligation.
We are mindful that our supreme court concluded the mandatory language of section 598.21(9) required its application in a case where the parties had stipulated to split physical care of their children, and mutually agreed to forego child support. See In re Marriage of Wilson, 572 N.W.2d 155, 156-57 (Iowa 1997). We find Wilson to be distinguishable from the case at hand Wilson turned on the presumption that, at the time of the initial decree, no child support had been ordered because the parents' obligations had been set-off, one against the other. Id. at 157. Thus, when the child in the father's care was no longer eligible for support, the mother no longer had an obligation under the guidelines, and the father's remaining obligation deviated more than ten percent from the initial net award of zero. Id. In other words, an actual change occurred between the time of the stipulated decree and the modification petition that resulted in the deviation of at least ten percent, and thus supported the modification sought by the petitioning party. Here, James can establish no change that would support a decrease in his obligation.
B. Physical Care.
The district court altered several provisions of the parenting schedule in the original decree: it deleted the provision that required the children to ride the bus after school to James's house because the children "spend too much time traveling"; it altered the days on which each party had care of the children and created a schedule it deemed "more workable"; and it deleted the provision that allowed Mellony the option of caring for the children if James was not able to do so because "[s]uch a provision simply does not work." The court was empowered to make these changes only upon a demonstrated, qualifying change in circumstances. Maher, 596 N.W.2d at 564-65; Chmelicek, 480 N.W.2d at 574. Upon our de novo review of the record, we agree with James's contention that Mellony failed to show a substantial change in circumstances warranting modification of the parties' joint parenting schedule.
We agree with the district court's conclusion that the parties' current parenting schedule may require the children to travel more than their mother would prefer, and may be inconvenient in some other respects. However, we conclude all of the issues raised concerning the schedule were within the contemplation of the court, and the parties, at the time the stipulated decree was entered, or are ordinary and reasonable changes in light of the children's advancing ages. See id. Moreover, although the parties' level of cooperation leaves room for improvement, the record does not demonstrate the current schedule has become unworkable. Mellony may now regret some aspects of the arrangement she and James entered into, but she has not demonstrated an unanticipated change warranting modification of the parenting schedule.
We reach a similar conclusion regarding the court's decision to delete paragraph (l), which allowed Mellony to care for the children if James and/or a current spouse were unable to do so. The evidence in the record fell far short of demonstrating that the particular provision in this case had actually become unworkable.
The changes made by the district court would likely create a more practical and workable schedule than the parties negotiated. However, in a modification action such changes can be made only upon a showing that there has been a qualifying substantial and material change in circumstances. Because no such showing was made in this case, we reverse those portions of the district court's modification decree that altered the parenting schedule set out in the initial decree.
C. Attorney Fees.
The district court ordered James to pay Mellony $2,000 in trial attorney fees. James contends the court should not have awarded Mellony any fees; Mellony contends the court should have awarded her more than $2,000.
Trial courts have considerable discretion in awarding attorney fees. In re Marriage of Geil, 509 N.W.2d 738, 743 (Iowa 1993). Whether attorney fees should be awarded depends on the respective ability of the parties to pay. Id. In addition, the fees must be fair and reasonable. In re Marriage of Willcoxson, 250 N.W.2d 425, 427 (Iowa 1977). To overturn the award, either party must establish that the court abused its discretion. Geil, 509 N.W.2d at 743. Having reviewed the relevant factors, we find no abuse of discretion in the award of trial attorney fees.
Mellony also requests that she be awarded appellate attorney fees. Such awards are discretionary and determined by assessing the needs of the requesting party, the opposing party's ability to pay, and whether the requesting party was forced to defend the appeal. In re Marriage of Gaer, 476 N.W.2d 324, 330 (Iowa 1991). Upon consideration of those factors, we decline to award appellate attorney fees in this matter. Costs of this appeal shall be assessed one-half to each party.